TB8-05844

Immigration and Refugee Board of Canada Refugee Appeal Division Commission de l'immigration et du statut de réfugié du Canada Section d'appel des réfugiés RAD File / Dossier de la SAR : TB8-05844 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXX XXXX Personne(s) en cause Appeal considered / heard at Toronto, ON Appel instruit / entendu à Date of decision April 15, 2019 Date de la décision Panel Harold Shepherd Tribunal Counsel for the person(s) who is(are) the subject of the appeal Dov Maierovitz Barrister and Solicitor Conseil(s) (de la/des) personne(s) en cause Designated representative N/A Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION INTRODUCTION [1] The Appellant, XXXX XXXX, is a twenty-six year old citizen of Ghana from XXXX who claims refugee protection on the basis of homosexual orientation. This is an appeal of the determination of the Refugee Protection Division (RPD), dated January 3, 2018, that he is neither a Convention refugee nor a person in need of protection. DETERMINATION [2] The Refugee Appeal Division (RAD) dismisses the appeal and confirms the decision of the RPD. BACKGROUND AND OVERVIEW OF APPEAL [3] The RPD decision was reviewed on a standard of correctness. No issue was identified to which deference should be shown because the RPD had a meaningful advantage over the Refugee Appeal Division (RAD).1 [4] No new evidence was filed with the Appeal Record and an oral hearing was not requested. New Submissions and evidence under RAD Rule 29 [5] Counsel filed supplementary submissions after the perfection of the appeal on January 11, 2019 with a request that they be admitted in accordance with rule 29 of the RAD Rules. Counsel submits that they address an important issue with respect to the credibility of the Appellant's testimony concerning his U.S. asylum claim, their admission would not prejudice the RAD, and that principles of natural justice and procedural fairness favour their reception. [6] Relevant factors to be considered under Rule 29 include relevance, probative value, and whether they could have been provided with reasonable effort with the appeal record. Counsel relies on citations from U.S. law that are not part of the RPD record. Counsel provided a web address for the U.S. Immigration and Nationality Act (INA) with an inactive link. Reference was only made to section 235(b) of a large piece of legislation. However, an internet search located the relevant provision in 8 USC 1225 of the INA.2 Given the probative value of this document to respond to an adverse credibility finding based on implausibility, I will admit this document with its accompanying submissions. Although the evidence and submissions could reasonably have been submitted with the Appeal record, the relevance and probative value of the documents outweigh these factors. They are admitted. Allegations of Fact [7] According to the narrative in the Basis of Claim (BOC) form, the Appellant entered into a same-sex relationship with someone he first met in elementary school, XXXX XXXX, after his friend returned from France in XXXX 2013. Rumours began to circulate in the community about the nature of his relationship with XXXX. When his father asked if they were true, the Appellant confessed that he is a homosexual. A neighbourhood group discovered the two together in his room and beat both of them in XXXX 2013. After fleeing to XXXX by bus, his father informed him that XXXX had been badly beaten and recommended that he leave the country. He states that he left Ghana on XXXX XXXX, 2013 with a Mexican visa obtained to attend a boxing event. His father paid $7,000 for the travel arrangements. After the Appellant was robbed of his possessions, including his passport, in Mexico, he crossed into the United States on XXXX XXXX, 2013. He was held in immigration detention until XXXX 2014. His asylum claim was denied about three weeks after he filed it. The Appellant then came to Canada on XXXX XXXX, 2017 and made a refugee claim that was heard by the Refugee Protection Division (RPD) on December 19, 2017 and rejected on January 3, 2018. The Issues [8] Counsel for the Appellant submits that the RPD panel erred in five ways. First, the panel did not apply the presumption that sworn testimony is true. Second, irrelevant considerations were used to support the conclusion that Mr. XXXX is not a credible witness. Third, the panel did not apply the correct legal test for plausibility. Fourth, the Sexual Orientation and Gender Identity and Expression (SOGIE) guidelines were not properly applied.3 Fifth, the RPD panel erred in giving no weight to the Statutory Declaration from the Appellant's father. The RPD did not err with respect to the presumption of truth [9] Counsel submits that the RPD's reasons for decision do not state that a claimant's sworn testimony is presumed to be true.4 It is not possible to tell from them whether the panel expected the Appellant to establish his credibility or whether the panel concluded that the presumption of truth had been rebutted on the particular facts of the case. [10] The Federal Court of Appeal held in the Maldonado decision that sworn testimony is presumed to be true unless there is good reason to doubt it.5 The RPD panel gave notice at the beginning of the hearing that credibility was at issue. Her line of questioning focused on alleged contradictions and inconsistencies in testimony and documentation. After reviewing the factors that rebut the Appellant's allegations of fact, she concluded that the Appellant is not credible on the determinative issue of sexual orientation and identity. Inconsistencies on non-determinative issues were used in conjunction with doubts arising from testimony about determinative issues. She based her conclusion on a general finding of lack of credibility resulting from an evaluation of inconsistencies and contradictions. She concluded that the Appellant is not a credible witness with respect to all of his substantive evidence, including that determinative of the claim. She did not err in doing this by failing to respect the presumption of truth. The RPD did nor err by relying on irrelevant or peripheral considerations to support its adverse credibility findings [11] Counsel submits that the RPD panel based adverse credibility findings on immaterial issues arising from the Appellant's testimony about his education, and employment history. The panel asserted that this line of questioning was material to two issues: national identity and educational history. According to counsel, once the panel accepted his identity as a national of Ghana, the question of his educational background, including what elementary school he attended, is not material to identity. Given the statement that the Appellant met his partner when he was in elementary school, the allegation of materiality cannot be supported. The panel also inquired into the Appellant's employment history, but did not give reasons why this line of questioning is material to the claim. [12] Counsel appears to be of the view that the RPD panel is only entitled to ask questions about issues that are material to the determinative issues of the claim. I disagree. The refugee claim documentation requires that claimants provide their educational and work history. This information can be important in establishing a personal profile for purposes of determining what one could reasonably expect from the claimant's general and specific knowledge, the level of language and employment skills, sophistication in answering questions, the reasonableness of attempts to access state protection, or the viability of internal flight alternatives, among other factors. It is not a legal error for the panel to ask questions about a claimant's personal history and circumstances in order to establish a credible and trustworthy factual basis which can be used to understand the specific personal circumstances of the case. It is important for the decision-maker to consider all the facts and not to take a microscopic approach that abstracts discrete issues from the whole. It is not an error to test all the evidence. [13] The RPD panel found that the Appellant was not credible about his same-sex relationship and his sexual orientation or identity. The panel cited all perceived contradictions and inconsistencies, including those pertaining to his relationship with XXXX, to make a finding that the Appellant's overall testimony is untrustworthy. The claim was not rejected because of inconsistencies arising from peripheral or non-determinative issues, but because the panel did not believe his testimony about his sexual orientation. The RPD panel did not err on this issue. The RPD erred in assessing the Appellant's U.S. asylum claim [14] Counsel submits that the RPD panel erred in concluding that is it not plausible for the Appellant's asylum claim to have been rejected within several weeks after it was made. No country condition documentation was cited in support of the assumption that the American asylum system is not efficient and prompt. According to the Federal Court, adverse plausibility findings should be made in the rarest of cases if the allegations are outside of what could be reasonably expected or that the documentary evidence shows that the events could not have taken place as described.6 Counsel's submissions on this point are correct. The RPD panel erred in drawing this adverse inference. [15] As previously noted, 8 USC 1125 of the U.S. INA provides that once an application for asylum is made by a person arriving in the U.S., the matter is referred to an asylum officer for a "credible fear" interview at the port of entry or elsewhere as designated by the Attorney General. If no credible fear is found, the decision is reviewed by an immigration judge within seven days. This decision cannot be appealed and is not subject to judicial review. It is indeed plausible for the Appellant to have made an asylum claim and have it rejected within three weeks, unless a credible fear had been found. The Appellant's testimony that his asylum claim was rejected a few weeks after his credible fear hearing is perfectly plausible and in accordance with established U.S. law and procedures. The RPD erred in drawing an adverse inference from this issue. The purchase of gay movies from street vendors in Ghana [16] Counsel submits that the RPD erred in concluding that it is not plausible for the Appellant to have purchased homosexual videos on the street in XXXX. Counsel further submits that the RPD panel erred in interpreting the Appellant's testimony. He did not say that he bought the movies from random people, but from a street vendor who sold movies. Second, the panel erred in naming the movie. He could only recall the name of one film. He did not refer to it as "Homosexuals and Lesbians," but rather "Gays and Lesbians." Neither phrase had been used moments before as alleged by the panel. [17] There were some factual errors in the RPD decision. The audio recording of the hearing indicates that the Appellant named the movie in question as "Gays and Lesbians," not "Homosexuals and Lesbians." This phrase was not employed beforehand, but was used by the Appellant soon thereafter when he said that it is easy to buy material about gays and lesbians in Ghana. He mentioned the title of another movie, "Four Banana Sellers" and said that he purchased it from someone selling it by the roadside. In Ghana, they can be purchased off the street, even if there are naked pictures on the cover. The RPD erred factually and in drawing an adverse credibility inference drawn from the mistaken impression that the phrase "gays and lesbians" had been planted in his mind through use shortly before. [18] The documentation in the NDP outlines serious risks related to non-conforming sexual orientation, including arrest by the police and violence inflicted by members of the community.7 The RPD panel had credible evidence to show that public display or support of homosexual practices would not be socially acceptable and could put the person who did so at serious risk or arrest or mistreatment. Although adverse plausibility findings should only be made in the clearest of cases, purchase of gay videos that are displayed to the public, as alleged by the Appellant, is implausible. The RPD panel did not err in this conclusion. Nevertheless, discrete sales of gay videos stored outside of public view would not encounter this objection. Testimony that he purchased gay videos from street merchants is, in itself, plausible. The problem stemmed from his testimony that these type of videos are displayed to the public as a matter of course with no problems. The RPD did not err in not believing the Appellant on this point on the basis that this is not plausible in light of the country conditions. The RPD erred in its application of the SOGIE guidelines [19] Counsel submits that the RPD erred because it lacked sensitivity in drawing an adverse inference from the Appellant's testimony about why he prefers men to women. Counsel states that the RPD panel misstated testimony in alleging that he said that it is better to date men because they do not have their hair and nails done. Two answers were given to the question of what it means to be gay. The first was that women ask for money for their fingernails, hairdressing and dresses. The second was that it is easier for men to understand each other without problems. The panel only cited part of his answer. Counsel submits that the panel's adverse comment that the answer lacks gravity about one's sexual orientation reflects a stereotype that is inconsistent with the SOGIE guidelines. [20] The SOGIE guidelines caution against stereotypes and give some examples of them. The panel was concerned with the functional, rather than relational, nature of his responses. The Appellant combined financial calculations (women ask for money) with relational statements (men are easier to understand). The panel concluded that the Appellant was not truthful because he presented the perspective of a heterosexual trying to imagine how a homosexual would think. This amounts to inappropriate speculation on the panel's part. It is not implausible for a homosexual to think in both terms, practical and relational. The Appellant referred to both, but the panel cited only one. The panel erred in drawing an adverse inference from this testimony. The question of what it means to be gay is an open-ended question that invites a subjective response. The Appellant cannot be faulted for having provided one, even if the panel's subjective understanding of the issue may have been different. Did the RPD err in giving no weight to the notarized declaration? [21] Counsel submits that the RPD erred in giving no weight to a notarized declaration from the Appellant's father because it refers to the Appellant as a XXXX rather than as a XXXX, is unsigned, and is a letter. Although his father made a mistake in stating his profession, the document is a signed statutory declaration, not an unsigned letter. The electronic copy of the affidavit has a post-it note over the signature line that obscures it. At the request of the RAD, council provided a copy that shows that the document is, indeed, signed. [22] The Appellant arrived in Canada on XXXX XXXX, 2017 and submitted his BOC on September 22, 2017. He testified that he lost his identity documents before arriving in Canada. He then filed a copy of a birth register entry that shows that the birth was registered in Ghana on September 27, 2017 based on information provided by XXXX XXXX. The certificate was registered the next day. About one month later, Mr. XXXX swore a statutory declaration that affirmed the central details of the Appellant's risk narrative. Although the Appellant testified that he worked as a XXXX, this statutory declaration states that he is a XXXX. [23] The RPD concluded that the affidavit is not likely authentic. I disagree. Reasons need to be given to support such a conclusion. The mere fact that fraudulent documents are easily available in Ghana is not adequate. The document in question is a statutory declaration that does not show signs, on its face, of problems. It was also accompanied by a copy of his voter's card. There are no good reasons to conclude that it was not likely sworn before a notary public, as alleged, by the deponent. The issue is not whether the document is fraudulent, but rather whether what the deponent says in it is likely true. This is a separate issue. [24] The Appellant stated that he worked as a XXXX apprentice for his father and then as a XXXX. The fact that the affidavit identifies him as being a XXXX is a serious problem. This is a significant inconsistency that provides sufficient grounds to doubt its legitimacy, given that it is allegedly from the father who employed him as a XXXX. It is not likely the result of a typographical error or a mistake about an issue that lies outside of his father's personal knowledge. Although the RPD panel erred in concluding that the document is likely fake, the problem identified raises a serious issue of credibility with respect to the facts stated in the document. The RPD did not err in concluding that the contents of the document are insufficiently credible to establish that what is said in it is likely true. Observations [25] The Appellant provided two educational scenarios. According to the first, he started school at age 4 and completed grade 6 at age 12 after 8 years of study. When he was about 16, he began to help his father as a XXXX assistant and then got his XXXX XXXX XXXX at age 18. The second scenario portrays him starting school in 2004 at age 12 and studying for six years until he was 17 in 2008. At one point he testified that he attended XXXX XXXXHigh School. The Appellant was questioned about this during the hearing and did not provide a reasonable explanation. Given the significant inconsistencies in his testimony about his education without a reasonable explanation, I am unable to determine, on a balance of probabilities, what the Appellant's educational history is, including whether he ever studied in Ghana. This is material to the appeal because he alleges that he first met his same-sex partner at school in Ghana. [26] The Appellant testified that he worked for his father as a XXXX XXXX for one year after he left school in 2008 when he was between about 17 and 18 years of age. However, he did not receive a XXXX XXXX until 2012 when he was 20 because he could not afford the cost. According to Schedule A, the Appellant worked as a self-employed XXXX from 2010 until 2013 between about 18 and 21 years of age. When asked about the inconsistent dates, no clear explanation was provided. He testified that he worked for a company which employed him to XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX. However, Schedule A indicates that he was self-employed. There are significant discrepancies in the Appellant's testimony about his work history. I am unable to determine, on a balance of probabilities, what he did and where before arriving in the United States. Residency in Ghana is material to the appeal. [27] The Appellant's testimony about his relationship with XXXX was not problematic. His testimony to preferring men because they are easier to understand and deal with is a matter of his personal perception. It does not give grounds for an adverse inference. If he had been questioned about XXXX family, work, interests, and what they did together, it may have been possible to gauge the spontaneity of his responses and whether his testimony is compatible with the stated relationship. Because these questions were not asked, I am not in a position to draw an adverse inference with respect to his knowledge of and relationship with XXXX. [28] The reasons provided by the RPD panel contain some errors, but are correct in their conclusion. The Appellant alleges that he is at risk in Ghana because of same-sex relationships that began when he was in school. Inconsistencies in his testimony lead to the conclusion that he was not likely telling the truth about his educational and work history in Ghana. More likely than not, he was not telling the truth about having lived, studied or worked in Ghana, as alleged. Being in Ghana at the material time is central to his claim. The question of where and when he was studying when he met his first same-sex partner is important. The extent of the inconsistencies supports the conclusion that the Appellant is not generally a reliable witness. Although the RPD made the errors previously referred to, I agree that the Appellant's testimony about sexual orientation and relationships in Ghana is not likely true. [29] After misrepresentations have been removed from a narrative, the RPD must consider the claimant's residual profile. On the facts of this case, the RPD did not err in concluding that the Appellant is not a homosexual, nor would he likely be perceived to be so in Ghana. He does not have a profile that would put him at risk in Ghana as understood in sections 96 and 97 of the IRPA. DETERMINATION [30] The RAD dismisses the appeal and confirms the decision of the RPD that the Appellant is neither a Convention refugee, nor a person in need of protection, pursuant to paragraph 111(1)(a) of the Immigration and Refugee Protection Act (IRPA). (signed) "H. Shepherd" H. Shepherd April 15 , 2019 Date 1 Canada (Minister of Citizenship and Immigration) v. Huruglica, 2016 FCA 93 (CanLII). 2 http://uscode.house.gov/view.xhtml?hl=false&edition=prelim&req=granuleid%3AUSC-prelim-title8-section1225&num=0&saved=%7CZ3JhbnVsZWlkOlVTQy1wcmVsaW0tdGl0bGU4LXNlY3Rpb24xMjI1%7C%7C%7C0%7Cfalse%7Cprelim. 3 Chairperson's Guideline 9: "Proceedings Before the IRB Involving Sexual Orientation and Gender Identity and Expression." Guidelines issued by the Chairperson pursuant to paragraph 159(1)(h) of the Immigration and Refugee Protection Act. 4 Maldonado v. Canada (Minister of Employment and Immigration), [1980] 2 FC 302 (CA). 5 Tan v. Canada (Citizenship and Immigration), 2018 FC 1151. 6 Valtchev v. Canada (Minister of Citizenship and Immigration), 2001 FCT 776, at para. 7, Muldoon J. 7 Exhibit RPD-1, RPD's Record, National Documentation Package, Ghana, 29 September 2017, at item 6.5, "Country Information and Guidance. Ghana: Sexual orientation and gender identity." Version 1.0. United Kingdom. Home Office, February 2016. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : TB8-05844 RAD.25.02 (September 18, 2018) Disponible en français 11 RAD.25.02 (September 18, 2018) Disponible en français